Court Adopts Standard for Disqualifying Attorney–Expert from Testifying Against Former Client

In a matter of first impression, the Minnesota Court of Appeals adopted a standard for determining whether to disqualify an attorney from serving as an expert witness against his former client. The court held that courts must assess disqualification on whether a confidential relationship existed between the attorney–expert and the adverse party and whether confidential information disclosed to the attorney related to the same subject matter as his proposed testimony. Berthiaume v. Allianz Life Ins. Co., 946 N.W.2d 423 (Minn. Ct. App. 2020). You may read this appellate opinion here.

A Fraud Scheme and a Familiar Witness

A federal court sentenced former insurance agent Sean Meadows to 25 years in prison for defrauding his retirement-age clients. The scheme centered on Meadows’ encouragement of his clients to surrender annuities early and invest in new ones. Many of his former clients filed a class-action lawsuit against Allianz Insurance Company alleging that the company knew about Meadows’ illegal practices.

The plaintiffs identified attorney Michael Rothman as an expert witness and reported that he would opine on Allianz’s lack of compliance with industry standards. From 2000 to 2010, however, Rothman represented Allianz, and specifically handled matters involving Allianz’s annuity products. Rothman served as Minnesota Commissioner of Commerce from 2011 to 2017 and then ran unsuccessfully for the Minnesota AG post.

Disqualification Issue and Legal-Standard Options

Allianz moved to disqualify Rothman, asserting that he received extensive confidential information about the company’s annuity business. Rothman refuted that story. He said that he did not possess confidential information from his prior representation of Allianz, did not rely on confidential information in forming his opinions, and did not use information relating to his prior representation.

The trial court recognized that Minnesota had never adopted a standard to govern disqualification of an attorney–expert wanting to testify against a former client. The court rejected the federal-court standard and instead applied the ethics-based attorney-conduct standard arising from Minnesota Rule of Professional Conduct 1.9(c)—Duties to Former Clients. The trial court held that the attorney could testify against a former client as long as he does not reveal information relating to the prior representation. You may read the trial court’s opinion here.

Reversal and New Standard

Allianz challenged this standard at the appellate level—and succeeded. The court found this standard weak because it has not gathered wide-spread support and, more importantly, would apply only to attorney–experts. The court preferred a standard that applies across expert professions rather than having “a different disqualification rule on a case-by-case and profession-by-profession basis.”

The court preferred—and adopted—the disqualifications standard applied in federal courts. Under this standard, courts assess disqualification by determining—

Whether a confidential relationship existed between the expert and the adverse party; and

Whether confidential information was disclosed during the relationship.

Embedded in this standard is a balancing of public-policy interests. On the one hand, the goal of preventing conflicts of interest and maintaining integrity of the judicial process favor disqualification. On the other hand, the goal of ensuring that parties have access to expert witnesses with specialized knowledge and allowing these experts to pursue their profession weighs against disqualification.

Courts following this standard in the attorney–expert context originally based it on the attorney–client privilege and the sanctity of information obtained during the attorney–client relationship. But courts “began to move away from a direct parallel between attorneys and other classes of expert witnesses.” And the Minnesota court wanted a single standard that applied to experts “regardless of whether or not the proffered expert is an attorney who previously represented the opposing party.”

Use of Confidential Information Not Required

Notably, the federal-court standard “does not require a showing that the attorney–expert intends to actually use confidential information gained during prior representation.”  This standard disqualifies attorney–experts “if there is even a risk that the attorney will rely on that confidential information.” And this is because—

The mere risk that an attorney might disclose confidential information tends to undermine both the attorney–client relationship and the integrity of the adversarial process.

But It Must be Related

This rule would likely preclude an attorney from ever serving as an expert witness against a former client—what attorney would not have received confidential information during the relationship? The court recognized this—as did Allianz—and modified the inquiry to this—

The proper inquiry is whether the confidential information disclosed to the attorney–expert during the prior representation involves the same subject matter or directly relates to the subject matter of the attorney–expert’s proposed testimony in the present litigation.

Differing Standards for Attorney as Expert and Attorney as Trial Counsel?

The plaintiffs argued that, by not following the Rule 1.9 attorney-conduct standard, a different disqualification rule applies to attorneys serving as expert witnesses than attorneys acting as opposing counsel to a former client. The court disagreed, saying that its added inquiry—whether the confidential information related to the same subject matter as the expert testimony—renders them roughly equivalent.

No Review by the Minnesota Supreme Court Review

The court remanded the case to the trial court for application of the new standard. But first, the plaintiffs filed a petition asking the Minnesota Supreme Court to review.  The Court stayed the case pending settlement discussions. On September 3, 2020, the Court dismissed the petition after receiving notice that the parties settled the case. The Court of Appeals’ standard, therefore, is the law unless modified by some future decision.